ALJDEC

01F-C001277-BFS · Department of Building and Fire Safety · 2001-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 3, 2001. APPEARANCES: Don Brewer, Respondent’s representative and qualifying party, and Derrick Hickman, Respondent’s witness. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainant has failed to establish a violation of the Department of Building and Fire Safety’s statutes governing licensees such as Respondent. Therefore, it is recommended that this complaint be dismissed with no disciplinary action against the Respondent’s license. FINDINGS OF FACT 1. Complainant filed a complaint with the Department of Building and Fire Safety on December 21, 2000 alleging water damage and other damage to her home. A Department of Building and Fire Safety Inspector verified that there was flooding and water damage in the home. Complainant requested a hearing on March 6, 2001. Although the start of the hearing was delayed by minutes in order to give the Complainant an opportunity to appear, she did not do so. The Respondent was represented by the qualifying party. He also brought a witness.

2. The Respondent’s representative offered testimony that the company was hired to move the Complainant’s manufactured home when a mobile home park was sold and the tenants were forced to move. After the move, the Complainant complained that there was a leak in the roof due to the move. Although there was water damage in the home, the Respondent’s witness testified that the Complainant has been discovered to have had a roof leak just prior to the move and the flooding may have come from that. Nevertheless, the Respondent was willing to make the repairs that were verified by the Department of Building and Fire Safety Inspector. Unfortunately, the Complainant would not choose the wall covering she wanted (the covering that was in the home is no longer made) and would not give access to the home to do the repairs despite several attempts by the Respondent to do so. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 41-1092, and A.R.S. § 41-2181. According to the applicable law, the Department of Building and Fire Safety is empowered to revoke or suspend the license of any licensed manufacturer, dealer, broker, salesperson or installer for any violation of A.R.S. § 41-2186. 2. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. In this case, the Complainant did not appear at hearing to offer any support of her claim that the Respondent failed to move and repair the home in a proper manner. The Office of Manufactured Housing verified the complaint but the Respondent was prevented from making the repairs by the Complainant’s lack of cooperation. In circumstances such as this, failure to cooperate with the Respondent and failure to give access to the home to make the requested repairs should be considered tantamount to actual performance of the repair work. The weight of the evidence has established that the Respondent complied with the applicable statutes and should not have its license disciplined. RECOMMENDED DECISION Based upon the foregoing considerations, it is recommended that the Director of the Department of Building and Fire Safety shall dismiss this Complaint and decline to discipline Respondent’s license.

Done this day, July 10, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Department of Building and Fire Safety N. Eric Borg ATTN: Shawna Blank East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826